At some point in your writing career, you will ask yourself the question, “Should I say that?” Whether it’s how you’re characterizing a person or the image you’re trying to strike for a company, you’ll wonder if it’s a good idea to publish the potentially offensive material. After all, you are responsible for what you publish. If you’re putting out something unflattering, you open yourself up for libel. But not everything we write needs to be flattering, does it? Sometimes you want to showcase the negatives! So what can you do to prevent libel in your writing? Let’s get into it.
Just remember, I am not a lawyer. (Oh, look, a disclaimer!)
What is libel
The Canadian Oxford Dictionary defines libel as “a published false statement that is damaging to a person’s reputation,” as well as the act or crime of publishing that material, called tort (so, publishers, you’re on the line too). While you can journal how you really feel to your heart’s content, sending those words out into the world for others to read is what puts you in hot water. Unless, of course, you can prove it. And even then…
We’re not going to get into the journalism side of libel, but approach it from a book author’s standpoint. Journalists have a nest of scorpions to deal with when it comes to libel.
For the average writer, it’s figuring out when your ‘accurate description’ could lead to legal action. The old adage of “if you don’t have anything nice to say, don’t say anything at all” is pretty great advice, legally speaking. When you’re going to say something anyway, it’s important to have a think about what impact your portrayal may have. That’s where we get into libel: damaging the reputation.
We see negative portrayals of people and businesses (and countries) all the time in our media—at all levels. Look at your social media and see how often people defame each other. What you may not be aware of is that some of those statements could be open to legal action.
While that’s not likely to happen, it’s more likely to happen if you publish the same kind of material. Why? Your intention to profit off of the sales versus just spouting off on Twitter. Once you toss money into an issue, it becomes a lot more complicated. If you were to make money off of causing damage to someone else’s reputation, you can imagine how swiftly a response will come if that person catches wind of your efforts.
Now, not all libel suits are successful. They fail for any number of reasons, but it is hard to prove damage to a reputation as well as malicious intent. You can’t rely on the suit failing, though. The consequences are tough if you lose a libel suit.
Look at the trouble Johnny Depp had in the UK, for example, or Andrew Greene in the USA. Depp’s is currently unresolved, and Greene won his case. (It’s notable that the former was for representation in the media and the latter for representation in film—the movie “The Wolf of Wall Street.”)
These two disparate cases show how hard it is to win. However, these are also famous cases involving powerful people. When it’s the little person being taken to task over misrepresentation or potential libel, they’re often unable to handle the legal fees involved with maintaining a lawsuit.
How to easily avoid libel
It’s likely safe to assume you don’t want to be the target of a libel accusation. It’s equally likely you don’t want to waste money defending your hard work from anyone who might take exception. There are essentially three things you can do to prevent libel in your writing, plus the advice I give all my authors.
If you want to know the easiest way to avoid libel, it’s this: Don’t publish anything offensive.
Next, pop in a disclaimer. As you’ve seen in the preliminary material for dozens of movies and books, disclaimers state that there are no intended similarities between what you’ve created and real people, companies, etc. As you’re revising your work, consider how you’ve described any real figures. If it’s easy to identify a singular being, and you’ve been malicious, there’s a case for libel (even if it’s true, you’ll still have to prove it). Make changes now to avoid pain later.
Additionally, you can write with more hyperbole, figures of speech, and other writing conventions that show you’re taking artistic license. While someone could still want to take action, they’d have a harder time making a serious case of malicious intent.
So there are three things you can do from your own computer to avoid libel: Don’t write it in the first place; make sure it’s sufficiently changed and you have a good disclaimer; and use writing conventions that say what you want without saying it specifically. However, the most helpful thing you can do—and the thing I tell all my authors—is seek proper legal council.
Contact a lawyer who specializes in defamation and libel. It’s worth the call if you’re serious about your work.
They’re the only ones who can really guide you through the legal ramifications of what you’re doing. They’ve got the experience and the knowledge you need to decide how to move forward with potentially libellous material.
Does this sound discouraging? Keep in mind how many works are out there that create a potentially unflattering rendition of a well-known figure. Most of these authors haven’t been sued. Why not? This comes back to the disclaimer and the intention of the piece—it also relates to the severity of the negative commentary. Would someone get upset if you portrayed them as uptight? Jealous? Aggressive? Maybe not. But if you recounted them as misogynistic and criminal, and they feel this rendition will cause them and their reputation harm, you’ve just opened yourself up to libel. If someone cares enough about what you’ve said, they’ll find a way to do something about it.
It’s one of the weird responsibilities you take on when you write—just ask a journalist. There’s no easy way to avoid libel, but you can safeguard yourself and be informed of potential outcomes so you’re not caught unawares if someone takes exception to your work.